Citation Nr: 0508579
Decision Date: 03/23/05 Archive Date: 04/01/05
DOCKET NO. 00-02 248A ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida
THE ISSUE
Whether the veteran was entitled to a 100 percent rating for
service-connected PTSD as of March 28, 1998.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
G. Zills, Counsel
INTRODUCTION
The veteran served on active duty from October 1969 to
September 1971.
This case comes before the Board of Veterans' Appeals (Board)
from a September 1999 RO decision which increased the rating
for service-connected PTSD from 50 percent to 100 percent,
effective from September 15, 1999. The veteran appeals for
an earlier effective date of March 28, 1998 for the award of
an increased rating of 100 percent. Specifically, he asserts
that a 100 percent rating should have been granted as of the
date of a March 28, 1998 VA examination. He has not claimed
or argued entitlement to a higher rating for any other period
of time, and the RO has not adjudicated any such entitlement.
Consequently, no other issue is before the Board at this
time.
FINDINGS OF FACT
1. In October 1991, the RO granted service connection and a
10 percent rating for PTSD, and this decision was not
appealed.
2. On May 24, 1993, the RO received the veteran's claim for
an increase in his 10 percent rating for PTSD. In September
1999, after several incremental increases, the RO granted a
100 percent rating for PTSD, effective September 15, 1999.
3. It is not factually ascertainable that PTSD had increased
to the 100 percent level as of the date of the veteran's
March 28, 1998 VA examination.
CONCLUSION OF LAW
The criteria for an earlier effective date of March 28, 1998,
for an increased 100 percent rating for PTSD, have not been
met. 38 U.S.C.A. §§ 5110, 7105 (West 2002); 38 C.F.R.
§ 3.400 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
First, the Board will address legislation and developments
involving VA's duty to notify and assist claimants. On
November 9, 2000, the Veterans Claims Assistance Act of 2000,
codified at 38 U.S.C.A. §§ 5103 & 5107 (West 2002), (the
"VCAA") was signed into law. This enhanced the
notification and assistance duties of the VA towards
claimants.
Recently, in Pelegrini v. Principi, 18 Vet. App. 112 (2004),
the United States Court of Appeals for Veterans Claims
(Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) (2004) apply to cases pending before VA on
November 9, 2000, even if the initial agency of original
jurisdiction decision was issued before that date; and (2)
that a claimant must be given notice in accordance with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) before an
initial unfavorable decision is issued. Section 3(a) of the
VCAA (also 38 U.S.C.A. § 5103(a)) and 38 C.F.R. § 3.159(b)(1)
require that, upon receipt of a complete or substantially
complete application, the VA must notify the claimant and any
representative of any information and any medical or lay
evidence not previously provided to the VA that is necessary
to substantiate the claim; this notice requires the VA to
indicate which portion of that information and evidence is to
be provided by the claimant and which portion the VA will
attempt to obtain on the claimant's behalf.
In Pelegrini, the Court appears to have held, in part, that a
VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant 's
possession that pertains to the claim, or something to the
effect that the claimant should "give us everything you've
got pertaining to your claim(s)." The Court stated that
this new "fourth element" of the notice requirement comes
from the language of 38 C.F.R. § 3.159(b)(1).
The file shows that through correspondence dated in October
2004, the rating decision dated in December 1999, and the
statement of the case dated in January 2000, the veteran has
been notified of the evidence necessary to substantiate his
claim for an earlier effective date of March 28, 1998 for an
increased 100 percent rating for PTSD. Pertinent records
have been obtained. The Board finds that the notice and duty
to assist provisions of the law have been met. 38 U.S.C.A.
§§ 5103, 5103A; 38 C.F.R. § 3.159.
There can be no harm to the veteran, as the VA has made all
efforts to notify and to assist the veteran with regard to
the evidence obtained, the evidence needed, the
responsibilities of the parties in obtaining the evidence,
and the more general notice of the need for any evidence in
the veteran's possession. Thus, the VA has satisfied its
"duty to notify" the veteran. A further examination, in
light of the issue before the Board at this time, would serve
no purpose as the critical question is the nature and extent
of the PTSD disorder in March 1998.
The veteran maintains that the increased 100 percent rating
for PTSD should be made effective from the date of a March
28, 1998 VA examination which he asserts shows entitlement to
a 100 percent rating.
The law provides that the effective date of an award of
increased compensation shall be the earliest date as of which
it is factually ascertainable that an increase in disability
had occurred, if application is received within one year from
such date; otherwise, the effective date will be the date of
VA receipt of the claim for increase, or date entitlement
arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2);
38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511
(1997); Harper v. Brown , 10 Vet. App. 125 (1997); VAOPGCPREC
12-98.
Service connection for PTSD has been effective since December
28, 1990. Different percentage ratings have been assigned
for the condition since then. The Board notes that the
percentage rating for a service-connected disability may be
increased or decreased over the years, depending on the
current level of severity as compared to the rating schedule
criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In the
veteran's case, his PTSD was initially rated 10 percent at
the time of service connection in October 1991. He did not
timely appeal this decision, and thus it became final.
38 U.S.C.A. § 7105.
In May 1993, he filed a claim for an increased rating for his
service-connected PTSD. In a July 1993 decision, the RO
declined to grant an increase in the 10 percent disability
rating for PTSD. Following a personal hearing and the
receipt of additional evidence, the RO, by means of a hearing
officer's decision issued in May 1994, granted an increased
rating of 30 percent for PTSD. A further increase, to a 50
percent disability rating, was granted by the RO in December
1996.
In a supplemental statement of the case issued in February
1997, the RO indicated that it had reevaluated the veteran's
rating in light of the newly revised (effective November 7,
1996) portion of the rating schedule pertaining to the
evaluation of disabilities stemming from mental disorders and
that it had determined that the veteran's 50 percent
disability rating continued to be appropriate.
In September 1999, the RO granted a 100 percent rating for
PTSD, effective from the date of a September 15, 1999 VA
examination.
The veteran argues that the 100 percent rating should be
effective from the date of an earlier March 28, 1998 VA
examination.
At the veteran's March 28, 1998 VA examination, he stated
that he experienced daily intrusive memories of Vietnam. He
said that he was under enemy mortar attack and sniper fire,
and saw many of his comrades killed. He described being
hypervigilant and experiencing flashbacks, and reported that
he avoided crowds and generally isolated himself. He
indicated that he had received psychiatric treatment and was
also on medication for his PTSD. He said that he lived by
himself and was undergoing his third divorce from the same
spouse. His last employment was in 1987, and a social and
industrial impairment survey indicated chronic instability
with employment since his Vietnam service in 1971. He said
that he had no history of drug use, and had not consumed
alcohol since 1988.
On mental status examination at that time, he was alert and
oriented times three with normal rate and tone of speech.
His speech was goal-directed, and his affect was constricted.
His thought form was cohesive and his content was without any
psychotic, obsessive, or manic features. Long-term and
short-term memory was intact, and concentration was fair.
Judgment was appropriate and insight was fair. He denied
both suicidal and homicidal ideation.
The examiner's impression at that time was continued symptoms
of PTSD which seemed to be connected most strongly to combat
stresses. The examiner's diagnosis was moderate to severe
PTSD, and he assigned the veteran a GAF score of 51.
The Board has reviewed the veteran's Global Assessment of
Functioning (GAF) score of 51 at the time of the March 28,
1998 VA examination. It is important to note that, as stated
by the Court, a GAF score is a scale reflecting the
"psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness." Richard v.
Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at
32).
A score of 21-30 is indicated when "Behavior is considerably
influenced by delusions or hallucinations OR serious
impairment in communication or judgment (e.g., sometimes
incoherent, acts grossly inappropriately, suicidal
preoccupation) OR inability to function in almost all areas
(e.g., stays in bed all day; no job, home or friends)." Id.
A score of 31-40 is indicated when there is, "Some impairment
in reality testing or communication (e.g., speech is at times
illogical, obscure, or irrelevant) OR major impairment in
several areas, such as work or school, family relations,
judgment, thinking, or mood." Id.
A score of 41-50 is assigned where there are, "Serious
symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in
social, occupational, or school functioning (e.g., no
friends, unable to keep a job)." Id.
A score of 51-60 is appropriate where there are, "Moderate
symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning, (e.g., few friends,
conflicts with peers or co-workers)." Id.
A score of 61-70 is indicated where there are, "Some mild
symptoms (e.g., depressed mood and mild insomnia OR some
difficulty in social, occupational, or school functioning
(e.g., occasional truancy, or theft within the household),
but generally functioning pretty well, has some meaningful
interpersonal relationships." Id.
A score of 71-80 is appropriate when, "If symptoms are
present, they are transient and expectable reactions to
psychosocial stressors (e.g., difficulty concentrating after
family argument; no more than slight impairment in social
occupational, or school functioning (e.g., temporarily
falling behind in schoolwork)." Id.
The current appeal stems from a claim for an increased rating
for PTSD filed by the veteran in 1993. During the pendency
of the veteran's appeal, VA promulgated new regulations
amending the rating criteria for mental disorders, effective
November 7, 1996, in order to ensure that current medical
terminology and unambiguous criteria are used. See 61 Fed.
Reg. 52,695 (1996) (codified at 38 C.F.R. pt. 4). The
changes included redesignation of § 4.132 as § 4.130 and the
revision of the newly redesignated § 4.130. Also effective
November 7, 1996, the general rating formula for mental
disorders was replaced with different criteria. And, in some
instances the nomenclature employed in the diagnosis of
mental disorders was changed to conform to the Diagnostic and
Statistical Manual for Mental Disorders, Fourth Edition, of
the American Psychiatric Association (DSM-IV), replacing DSM-
III-R. The Board has analyzed the veteran's claim under both
sets of criteria. The RO also considered both sets of rating
criteria, so there is no prejudice to the veteran by the
Board doing so.
Under the criteria in effect prior to November 7, 1996, a 100
percent rating was assigned for PTSD when the attitudes of
all contacts except the most intimate are so adversely
affected as to result in virtual isolation in the community;
or totally incapacitating psychoneurotic symptoms bordering
on gross repudiation of reality with disturbed thought and
behavioral processes associated with almost all daily
activities such as fantasy, confusion, panic, and explosions
of aggressive energy resulting in profound retreat from
mature behavior; or demonstrably unable to obtain or retain
employment. 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996).
Under the criteria which became effective on November 7,
1996, PTSD is rated 100 percent when it produces total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name. 38 C.F.R. §
4.130, Diagnostic Code 9411 (2004).
Upon consideration of the March 28, 1998 VA examination, the
Board finds that it does not establish impairment from PTSD
sufficient to support a 100 percent rating for the condition
under either the old or the new rating criteria. The
examination shows that the veteran experiences flashbacks and
intrusive thoughts because of his PTSD, and is hypervigilant
and prefers to isolate himself. He was noted as having a
history of unstable employment since 1971. He was found to
have moderate to severe PTSD, and was given a GAF score of
51. Both findings of "moderate to severe" PTSD and a GAF
of 51 clearly provide negative evidence against this claim.
The Board finds that most of the symptoms required for a 100
percent rating for PTSD under both the old and the new rating
criteria are not present, and it is not shown that PTSD
produced total social and industrial (occupational)
impairment at this time, as required for a 100 percent
schedular rating under either the old or the new rating
criteria.
Under these circumstances, the veteran's 100 percent rating
for PTSD may not be made effective as of the date of the
March 28, 1998 VA examination. The preponderance of the
evidence is against the claim for an effective date of March
28, 1998 for an increased 100 percent rating for PTSD. Thus
the benefit-of-the-doubt rule does not apply, and the claim
must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
ORDER
An earlier effective date of March 28, 1998 for an increased
100 percent rating for PTSD is denied.
____________________________________________
JOHN J. CROWLEY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs